One of the important practices of our office is the enforcement of foreign court judgments and arbitral awards in Turkey and some of the cases we handled established court precedence. This article aims to give an overview of the enforcement process in Turkey.
Foreign court judgments and arbitral awards cannot be enforced in Turkey automatically. An enforcement suit has to be filed before the competent courts in Turkey and an “exequatur” decision has to be obtained. During the enforcement suit, Turkish courts cannot hear the case again based on the révision au fond prohibition, but shall review a limited number of conditions enumerated in the Turkish Private International Procedural Code.
The conditions and procedure of enforcement of foreign court judgments and foreign arbitral awards are outlined herebelow:
1. Conditions for the enforcement of foreign court judgments.
In an enforcement suit in relation to the enforcement of a foreign court judgment, Turkish courts shall require that all of the following conditions are met:
● Reciprocity condition: There must be reciprocity between the country where the judgment was given and Turkey. Reciprocity may be based on a bilateral or multilateral treaty which enables the judgments given in the one of the countries to be enforced in the other one. Even if there is no such treaty, if there is de facto reciprocity i.e if the plaintiff demonstrates that the judgements given in Turkey are enforced in the country where the judgement was given or if these two legal systems are similar in terms of the rules of enforcement of foreign court judgments, reciprocity condition will deemed to be fulfilled● Non-exclusive jurisdiction condition: The judgment must not be given on a matter, which is within the exclusive jurisdiction of Turkish courts or the judgment must not be given in a court within a state which does not have any relationship with the parties.● Public policy considerations: The judgment must not be explicitly against Turkish public order● Right of defense: The judgment must be given by observing the rule of the defendant’s right of defense and if the judgment is given in the absence of the defendant, the service of the claim must have been made in accordance with the procedural rules of the country where the judgment is given
The documents required for filing the enforcement lawsuit are as follows:
● The original or legalized copy of the judgment, which should be notarized and apostilled or legalized by the Turkish consulate● A certificate showing that the judgment has become binding, enforceable and final issued by the authorities, which must be notarized and apostilled or legalized by the Turkish Consulate,● If the opponents have not participated in the proceedings, a document showing that they have been duly served with the proceedings, which must be notarized and apostilled or legalized by the Turkish Consulate● POA issued to our address, which must be notarized and apostilled or legalized by the Turkish Consulate
2. Conditions for the enforcement of foreign arbitral awards
Turkey is a party to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (“Convention”) and therefore in the event that the arbitral award is given in a state party to the Convention, the provisions of the Convention shall be applicable. In any case, Turkish Private International Procedural Law provisions in relation to the conditions and procedure for enforcement of arbitral awards reflect the provisions of the Convention.
Parallel to the provisions of the Convention, Turkish courts may only refuse recognition and enforcement of an arbitral award at the request of the party against whom it is invoked, only if that party furnishes to the court proof that:
● One of the parties was not duly represented during the arbitration proceedings and he did not accept the actions taken at a later stage; or ● The party against whom the award is invoked was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings or was otherwise unable to present his case; or ● The arbitration agreement or clause is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law of the country where the award was made; or ● The composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties, or, failing such agreement, was not in accordance with the law of the country where the arbitration took place; or ● The award deals with a difference not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration, provided that if the decisions on matters submitted to arbitration can be separated from those not so submitted, that part of the award which contains decisions on matters submitted to arbitration may be recognized and enforced; or ● The award has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made.
Recognition and enforcement of an arbitral award may also be refused if the competent Turkish court where recognition and enforcement is sought finds that:
● There is no arbitration agreement or arbitration clause in the main agreement between the parties; or ● The subject matter of the difference is not capable of settlement by arbitration under Turkish law; or ● The recognition or enforcement of the award would be contrary to the public policy of that country.
The documents required for filing the lawsuit for enforcement foreign arbitral awards are as follows:
● The original or legalized copy of the award, which should be notarized and apostilled or legalized by the Turkish consulate along with its official translation into Turkish, ● The original or the duly legalized copy of the arbitration agreement or the arbitration clause incorporated in the agreement, which must be notarized and apostilled, along with its official translation into Turkish, ● A certificate showing that the award has become enforceable, binding and final (a certificate of finality is not required under New York Convention, which requires the award to become binding only, but based on some Turkish Court of Appeal Decisions, it would be advisable to refer to the award’s being final under the law applicable to the arbitration if that is possible), which must be notarized and apostilled or legalized by the Turkish Consulate, along with its official translation into Turkish, ● POA issued to our address, which must be notarized and apostilled or legalized by the Turkish Consulate
This Article aims to provide a brief and general overview of enforcement of foreign court judgments and arbitral awards in Turkey, but does not intended to serve as a legal advice. Before taking any action or relying on the information given, addressees of this Article should seek specific advice on the matters which concern them.